Gentry v. Gentry
Decision Date | 21 June 1955 |
Docket Number | No. 5914,5914 |
Citation | 1955 NMSC 55,285 P.2d 503,59 N.M. 395 |
Parties | T. J. GENTRY, Plaintiff-Appellant, v. Sam GENTRY, Defendant-Appellee. |
Court | New Mexico Supreme Court |
Donald Brown, Roswell, for appellant.
James M. H. Cullender, Roswell, for appellee.
This claim is based upon an oral contract on the part of the defendant to repay the plaintiff money loaned him. On September 19, 1952, plaintiff-appellant brought an action against defendant-appellee for $3,850. He alleged defendant's failure and refusal to repay the same, and prayed judgment for $3,850, and interest at six per cent. per annum. No response was filed to this complaint until February 11, 1954, when a motion for a bill of particulars or to make more definite and certain was filed by defendant. On May 4, 1954, after there had been substitution of counsel for plaintiff, a first amended complaint was filed, and in it plaintiff alleged that defendant was indebted to him for money loaned, viz.:
December 1946 .. $3,300.00 December 1946 ..... 140.00 January 1947 ...... 300.00 --------- $3,740.00
The amended complaint continued: That defendant had made the following payments to plaintiff, viz.:
In 1949--2 hogs delivered to plaintiff $ 40.00 January 1950 by cash 500.00 March or April 1950, one cow & calf 200.00 June to September 1950 rent for grazing four of plaintiff's cows on defendant's pasture 32.00 ------- $772.00
Plaintiff prayed judgment for $2,968 and interest at 6 per cent. per annum from October 1, 1950 and costs. Defendant filed a general denial and invoked the Statute of Limitations.
The parties agreed upon a statement of facts and stipulated that they deemed the same sufficient for the purpose of review, as is provided for by Supreme Court Rule 13, subd. 8, which is as follows:
'It is stipulated and agreed that on December 9, 1946, the plaintiff loaned to the defendant the sum of $3300.00, that within a very few days thereafter the plaintiff loaned to the defendant an additional sum of $140.00, and between the months of January and March, 1947, the plaintiff loaned to defendant an additional sum of $300.00, and at the time said loans were made there was no definite understanding between the parties as to when such sums of money would be repaid, there was no agreed rate of interest, and no instruments in writing were executed to evidence such indebtedness.
'It is further stipulated and agreed that in the year 1949 the defendant delivered two hogs to the plaintiff at an agreed valuation of $40.00; that in January 1950, the defendant paid to the plaintiff cash in the amount of $500.00; that in March, 1950, the defendant delivered a cow and a calf to the plaintiff for an agreed consideration of $200.00; and that in June, July, August and September, 1950, the plaintiff was allowed to pasture four head of cattle upon pasture land belonging to the defendant for an agreed consideration of $8.00 per month, or a total of $32.00; that it was agreed between the parties that such credit items being in the total amount of $772.00 would be applied for partial payment of the indebtedness owing, and that no further payments upon the indebtedness have been made by the defendants since the month of September, 1950.
'It is further stipulated that this action was filed on September 19, 1952, approximately five years and nine months after the first loan made by the plaintiff to the defendant, and approximately two years after the last item of credit was given on the account.'
The court then found:
It concluded as a matter of law:
The appellant assigns five errors which he argues under two points. Point one being that the 'appellant's cause of action was one of open current account which is controlled by Sec. 23-1-6 of 1953 Compilation and this action is not barred by the Statute of Limitations applicable thereto.' We do not agree with this contention.
What is a mutual, open, current account of which the law takes cognizance in determining the rights and liabilities of debtor and creditor litigants in apparent qualification of the...
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